The Status of EU Settlement Scheme Applicants After 30 June 2021
In this post we look at the legal position and status of EU citizens and their family members who have applied for Pre-Settled or Settled Status under the EU Settlement Scheme (‘EUSS’) and who are awaiting a decision from the Home Office after 30 June 2021.
With the volume of applications the EU Settlement Scheme has received in the latter part of the ‘grace period’ (ending on 30 June 2021) there are increasing delays in the processing of applications for Pre Settled and Settled Status, particularly the applications which were still required to be made by post. It is reported that the number of persons awaiting decisions could be in the hundreds of thousands, and there are delays which are running into months.
Along with applications which still have not been processed, there will be those where the applicants are challenging refusals of their applications, both by Administrative Review and by lodging appeals against the decision to the First Tier Tribunal. These are also applications which have not reached the final determination, in addition to those which have not received an initial decision.
If you have applied to the EUSS and have not yet received a decision, it is important that you understand your rights in the UK after 30 June 2021 while waiting for a decision on your EU Settlement Scheme Application.
Am I lawfully resident in the UK whilst awaiting a decision on an EU Settlement Scheme application?
The Withdrawal Agreement at Article 18(3) states that the following will be the position:-
“Pending a final decision by the competent authorities on any application referred to in paragraph 1, and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in this Part shall be deemed to apply to the applicant, including Article 21 on safeguards and right of appeal, subject to the conditions set out in Article 20(4).”
This assurance in the Withdrawal Agreement has now been provided for in legislation, The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. These Regulations set out the rights of EU citizens and their family members which continue whilst awaiting a decision on an application under the EU Settlement Scheme. They state (see Regulation 4 in particular) that if an application is made before the end of the ‘grace period’ (i.e. 30 June 2021), the applicant will continue to have the same rights as they would have had in the UK before 31 December 2020 under the previous EEA Regulations. Regulation 5 sets out the particular rights and activities which extend whilst awaiting a decision on an in-time application under the EU Settlement Scheme, and Regulation 11 deals with the particular benefits (Housing Benefit, etc) which similarly should continue during the waiting period (however, note this is continuing entitlement to receive benefits, new claims may prove to be more complex).
If an applicant is not an EU national and is looking to be recognised as a family member (such as an eligible durable partner) and had a previous visa in another category (such as a student), it may also be important that the application is made before the expiry of that previous visa, as the application to vary this leave should have the added protection provided by section 3C of the 1971 Immigration Act.
How do I prove I am still lawfully resident in the UK while waiting for a decision on an EU Settlement Scheme application?
Here is a link to a guide given to MPs by the Home Office about what to tell their constituents about their status and how to prove they have complied with the deadlines to employers, landlords, etc. – and for people who are in receipt of benefits.
It states that applicants should show their Certificate of Application to prove that their rights continue, and it is to be hoped that this will not be problematic for applicants in such situations. The briefing to the MPs says the following:-
‘The Home Office says that employers and landlords should give people “every opportunity” to demonstrate their ongoing eligibility to work and rent whilst their application is under consideration and be mindful of avoiding unlawful discrimination.’
Is there a 28 day extension after 30 June 2021 to make an application?
Here is a link to a previous article we posted about the deadlines and late applications. The ‘28 day notice period’ has been widely misunderstood as being an extension to the 30 June 2021 deadline, or end of the ‘grace period’, to make an application. What the ‘28 day notice period’ refers to is that, if someone who should have made an application to the EU Settlement Scheme is encountered by Immigration Officials, they will be given 28 days notice to make their application before enforcement action will be taken. It is not an extension to the 30 June 2021 deadline.
Note also that a late application does not provide the same protection or rights under the Regulations discussed above as an in-time application (i.e. one made before 30 June 2021).
Our ‘EU Settlement Scheme Toolkit’ provides links to our previously published articles which deal comprehensively with making applications under the EU Settlement Scheme, and about the continuing rights of EU and Irish citizens in the UK.
Contact our EU Settlement Scheme Barristers
For expert advice and assistance with an application under the EU Settlement Scheme, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.